Florida Senate - 2011                CS for CS for CS for SB 402
       By the Committees on Rules; Community Affairs; and Criminal
       Justice; and Senators Negron and Evers
       595-04671-11                                           2011402c3
    1                        A bill to be entitled                      
    2         An act relating to the regulation of firearms and
    3         ammunition; amending s. 790.33, F.S.; clarifying and
    4         reorganizing provisions that preempt to the state the
    5         entire field of regulation of firearms; prohibiting
    6         the violation of the Legislature’s occupation of the
    7         whole field of regulation of firearms and ammunition
    8         by the enactment or causation of enforcement of any
    9         local ordinance or administrative rule or regulation;
   10         providing additional intent of the act; eliminating
   11         provisions authorizing counties to adopt an ordinance
   12         requiring a waiting period between the purchase and
   13         delivery of a handgun; providing injunctive relief
   14         from the enforcement of an invalid ordinance,
   15         regulation, or rule; providing a civil penalty for
   16         knowing and willful violation of prohibitions;
   17         providing that public funds may not be used to defend
   18         or reimburse the unlawful conduct of any person
   19         charged with a knowing and willful violation of the
   20         act; providing for termination of employment or
   21         contract or removal from office of a person acting in
   22         an official capacity who knowingly and willfully
   23         violates any provision of the act; providing for
   24         declaratory and injunctive relief for specified
   25         persons or organizations; providing for specified
   26         damages and interest; providing exceptions to
   27         prohibitions of the act; providing an effective date.
   29  Be It Enacted by the Legislature of the State of Florida:
   31         Section 1. Section 790.33, Florida Statutes, is amended to
   32  read:
   33         790.33 Field of regulation of firearms and ammunition
   34  preempted.—
   35         (1) PREEMPTION.—Except as expressly provided by the State
   36  Constitution or general law, the Legislature hereby declares
   37  that it is occupying the whole field of regulation of firearms
   38  and ammunition, including the purchase, sale, transfer,
   39  taxation, manufacture, ownership, possession, storage, and
   40  transportation thereof, to the exclusion of all existing and
   41  future county, city, town, or municipal ordinances or any
   42  administrative regulations or rules adopted by local or state
   43  government relating thereto. Any such existing ordinances,
   44  rules, or regulations are hereby declared null and void. This
   45  subsection shall not affect zoning ordinances which encompass
   46  firearms businesses along with other businesses. Zoning
   47  ordinances which are designed for the purpose of restricting or
   48  prohibiting the sale, purchase, transfer, or manufacture of
   49  firearms or ammunition as a method of regulating firearms or
   50  ammunition are in conflict with this subsection and are
   51  prohibited.
   53         (a) Any county may have the option to adopt a waiting
   54  period ordinance requiring a waiting period of up to, but not to
   55  exceed, 3 working days between the purchase and delivery of a
   56  handgun. For purposes of this subsection, “purchase” means
   57  payment of deposit, payment in full, or notification of intent
   58  to purchase. Adoption of a waiting-period ordinance, by any
   59  county, shall require a majority vote of the county commission
   60  on votes on waiting-period ordinances. This exception is limited
   61  solely to individual counties and is limited to the provisions
   62  and restrictions contained in this subsection.
   63         (b) Ordinances authorized by this subsection shall apply to
   64  all sales of handguns to individuals by a retail establishment
   65  except those sales to individuals exempted in this subsection.
   66  For purposes of this subsection, “retail establishment” means a
   67  gun shop, sporting goods store, pawn shop, hardware store,
   68  department store, discount store, bait or tackle shop, or any
   69  other store or shop that offers handguns for walk-in retail sale
   70  but does not include gun collectors shows or exhibits, or gun
   71  shows.
   72         (c) Ordinances authorized by this subsection shall not
   73  require any reporting or notification to any source outside the
   74  retail establishment, but records of handgun sales must be
   75  available for inspection, during normal business hours, by any
   76  law enforcement agency as defined in s. 934.02.
   77         (d) The following shall be exempt from any waiting period:
   78         1. Individuals who are licensed to carry concealed firearms
   79  under the provisions of s. 790.06 or who are licensed to carry
   80  concealed firearms under any other provision of state law and
   81  who show a valid license;
   82         2. Individuals who already lawfully own another firearm and
   83  who show a sales receipt for another firearm; who are known to
   84  own another firearm through a prior purchase from the retail
   85  establishment; or who have another firearm for trade-in;
   86         3. A law enforcement or correctional officer as defined in
   87  s. 943.10;
   88         4. A law enforcement agency as defined in s. 934.02;
   89         5. Sales or transactions between dealers or between
   90  distributors or between dealers and distributors who have
   91  current federal firearms licenses; or
   92         6. Any individual who has been threatened or whose family
   93  has been threatened with death or bodily injury, provided the
   94  individual may lawfully possess a firearm and provided such
   95  threat has been duly reported to local law enforcement.
   96         (2)(3) POLICY AND INTENT.—
   97         (a) It is the intent of this section to provide uniform
   98  firearms laws in the state; to declare all ordinances and
   99  regulations null and void which have been enacted by any
  100  jurisdictions other than state and federal, which regulate
  101  firearms, ammunition, or components thereof; to prohibit the
  102  enactment of any future ordinances or regulations relating to
  103  firearms, ammunition, or components thereof unless specifically
  104  authorized by this section or general law; and to require local
  105  jurisdictions to enforce state firearms laws.
  106         (b) It is further the intent of this section to deter and
  107  prevent the violation of this section and the violation of
  108  rights protected under the constitution and laws of this state
  109  related to firearms, ammunition, or components thereof, by the
  110  abuse of official authority that occurs when enactments are
  111  passed in violation of state law or under color of local or
  112  state authority.
  113         (3) PROHIBITIONS; PENALTIES.—
  114         (a) Any person, county, agency, municipality, district, or
  115  other entity that violates the Legislature’s occupation of the
  116  whole field of regulation of firearms and ammunition, as
  117  declared in subsection (1), by enacting or causing to be
  118  enforced any local ordinance or administrative rule or
  119  regulation impinging upon such exclusive occupation of the field
  120  shall be liable as set forth herein.
  121         (b) If any county, city, town, or other local government
  122  violates this section, the court shall declare the improper
  123  ordinance, regulation, or rule invalid and issue a permanent
  124  injunction against the local government prohibiting it from
  125  enforcing such ordinance, regulation, or rule. It is no defense
  126  that in enacting the ordinance, regulation, or rule the local
  127  government was acting in good faith or upon advice of counsel.
  128         (c) If the court determines that a violation was knowing
  129  and willful, the court shall assess a civil fine of up to $5,000
  130  against the elected or appointed local government official or
  131  officials or administrative agency head under whose jurisdiction
  132  the violation occurred.
  133         (d) Except as required by applicable law, public funds may
  134  not be used to defend or reimburse the unlawful conduct of any
  135  person found to have knowingly and willfully violated this
  136  section.
  137         (e) A knowing and willful violation of any provision of
  138  this section by a person acting in an official capacity for any
  139  entity enacting or causing to be enforced a local ordinance or
  140  administrative rule or regulation prohibited under paragraph (a)
  141  or otherwise under color of law shall be cause for termination
  142  of employment or contract or removal from office by the
  143  Governor.
  144         (f) A person or an organization whose membership is
  145  adversely affected by any ordinance, regulation, measure,
  146  directive, rule, enactment, order, or policy promulgated or
  147  caused to be enforced in violation of this section may file suit
  148  against any county, agency, municipality, district, or other
  149  entity in any court of this state having jurisdiction over any
  150  defendant to the suit for declaratory and injunctive relief and
  151  for actual damages, as limited herein, caused by the violation.
  152  A court shall award the prevailing plaintiff in any such suit:
  153         1. Reasonable attorney’s fees and costs in accordance with
  154  the laws of this state, including a contingency fee multiplier,
  155  as authorized by law; and
  156         2. The actual damages incurred, but not more than $100,000.
  158  Interest on the sums awarded pursuant to this subsection shall
  159  accrue at the legal rate from the date on which suit was filed.
  160         (4) EXCEPTIONS.—This section does not prohibit:
  161         (a) Zoning ordinances that encompass firearms businesses
  162  along with other businesses, except that zoning ordinances that
  163  are designed for the purpose of restricting or prohibiting the
  164  sale, purchase, transfer, or manufacture of firearms or
  165  ammunition as a method of regulating firearms or ammunition are
  166  in conflict with this subsection and are prohibited;
  167         (b) A duly organized law enforcement agency from enacting
  168  and enforcing regulations pertaining to firearms, ammunition, or
  169  firearm accessories issued to or used by peace officers in the
  170  course of their official duties;
  171         (c) Except as provided in s. 790.251, any entity subject to
  172  the prohibitions of this section from regulating or prohibiting
  173  the carrying of firearms and ammunition by an employee of the
  174  entity during and in the course of the employee’s official
  175  duties;
  176         (d) A court or administrative law judge from hearing and
  177  resolving any case or controversy or issuing any opinion or
  178  order on a matter within the jurisdiction of that court or
  179  judge; or
  180         (e) The Fish and Wildlife Conservation Commission from
  181  regulating the use of firearms or ammunition as a method of
  182  taking wildlife and regulating the shooting ranges managed by
  183  the commission.
  184         (5)(b)SHORT TITLE.—As created by chapter 87-23, Laws of
  185  Florida, this section shall be known and may be cited as the
  186  “Joe Carlucci Uniform Firearms Act.”
  187         Section 2. This act shall take effect October 1, 2011.